Punjab

Ludhiana

CC/15/451

Jagdev Singh - Complainant(s)

Versus

M/s Shivam Motors - Opp.Party(s)

Ashok Kumar Adv.

12 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 451 of 28.07.2015

Date of Decision    :   12.05.2016

              

Jagdev Singh aged about 43 years son of Sh.Jaswant Singh, resident of Village:Bhamaddi, Tehsil Khanna, District Ludhiana.

….. Complainant

Versus

1.M/s Shivam Motors, 99, Grain Market, Khanna, Tehsil Khanna, District Ludhiana through Sh.Lal Chand Gupta son of Sh.Satpal Gupta.

2.S.D.F.Pvt.Ltd. No.72, SIPCOT, Industrial Complex, Ranipat, 632403, Tamilnadu, India through its General Manager.

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                       :        Sh.Ashok Kumar Mago, Advocate

For Op1                         :        Sh.Sachin Seth, Advocate

For OP2                         :        Ex-parte.

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant purchased tractor, which was got subsequently registered with Motor Registration Authority with registration No.PB-10-ES-2690,from Op1 vide invoice No.508 dated 9.6.2014. That tractor was manufactured by OP2. OP1 received Rs.11 lac from the complainant as the price of the tractor, but in fact invoice of cost of Rs.10,40,000/- was issued. Guarantee/warrantee of 2 years for the said tractor was provided, but despite that tractor was not in working condition. That fact was disclosed to Op1. Spare parts of the said tractor even are not available with OP1. Paint of the tractor started falling down at its own. Complainant got fitted an A.C.cabin on the said tractor by spending Rs.2,50,000/-. OP1 and OP2 failed to repair the tractor for putting the same in working condition. OP1 disclosed at the time of sale of the tractor as if the same will consume 7.5 liter diesel per hour, but in fact the consumption of the same is 11 liter per hour. Legal notice for the above pointed deficiency of service was sent through counsel and as such, complaint filed for directing OPs to replace the tractor in question with new one or return the paid amount to OP1. Compensation of Rs.1 lac for harassment even claimed.

2.                In written statement filed by OP1, it is pleaded interalia as if the complaint in the present form is not maintainable; complaint filed for evading payment of service expenses; complainant himself got fitted A.C.Cabin on the tractor from an unauthorized person against the recommendation of the company. Besides, it is admitted that complainant has purchased the tractor from Op1, being authorized dealer of OP2. After this purchase, complainant started using the tractor with full satisfaction. After getting the A.C.Cabin fitted on the tractor, complainant started making complaints of high consumption of diesel, but the same consumption increased due to fitting of the A.C.Cabin. Complainant visited service centre of OP1 on 25.2.2015 and 20.4.2015 and at that time, the required parts of the tractor were changed. Complainant obtained the delivery of the tractor by recording full satisfaction by way of putting his signature on the job card. Thereafter, complainant visited service station of OP1 number of times and got the required service done to his satisfaction. Total amount of Rs.6808/- of service charges is still payable by the complainant to OP1. Copy of bills along with statement of account in that respect has been produced on record by OP1. As per the term and condition number 11.1, in case, the tractor or any part thereof repaired or altered against the standard repair procedures or from the person not authorized by the company, then the warranty to become null and void. So, in view of getting of A.C.cabin fitted from an unauthorized person, OPs are not liable to pay compensation as prayed. It is claimed that complainant paid Rs.10,40,000/- qua which bill No.508 dated 9.6.2014 was issued at the time of sale of the tractor by OP1 to the complainant. Each and every other averment of complaint denied by claiming that tractor is in working condition and complainant is using the same.

3.                In separate written statement filed by OP2, it is claimed that allegations regarding difference in price of the actual paid amount and one mentioned in the bill pertains to OP1 and OP2 neither can admit nor can deny about the same. MRP of the tractor in question alleged to be of Rs.11,89,552/-. OP2, being manufacturer, provides warranty for 24 months or for 2000 hours of operation of the tractor, whichever occurs earlier from the date of delivery. As per that warranty, the dealer of the company to repair or replace any part of the tractor, subject to limitations specified in the warranty policy. On account of getting the A.C.Cabin fitted from outside, black chassis paint stood damaged and as such, OP2 not responsible for the same. A.C.Cabin got fitted along with accessories thereof are unbranded articles manufactured locally and as such,    OP2 not liable for any damages or compensation. Complainant has never lodged report with OP2 qua excess fuel consumption prior to the installation of A.C.Cabin and as such, it is claimed that higher fuel consumption is because of fixation of air conditioner equipments. It is claimed that there is no deficiency in service on the part of OP2 and even there is no manufacturing defect in the tractor. Prayer made for dismissal of complaint.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA and affidavit Ex.CB of Sh.Gurdeep Singh along with documents Ex.C1 to Ex.C3 and then closed the evidence.

5.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA of Sh.Lal Chand Gupta, Proprietor of OP1 along with documents Ex.R1 to Ex.R9 and thereafter, closed the evidence.

6.                Earlier, Sh.Narinder Kumar Jangid, authorized representative of OP2 appeared, but later on at the stage of adducing evidence, none appeared for OP2 for two dates and as such, Op2 was proceeded against ex-parte vide order dated 29.1.2016.

7.                Written arguments not submitted by any of the parties. Oral arguments of counsel for the parties heard. Records gone through minutely. 

8.                Undisputedly, tractor in question was purchased by the complainant from Op1, vide invoice Ex.C1. Dispute remains as to whether amount of Rs.11 lac charged from the complainant by OP1, despite issue of bill Ex.C1 of Rs.10,40,000/-. In legal notice Ex.C2, plea regarding charging of excess price is not raised at all and as such, this plea is an afterthought. Sh.Gurdeep Singh s/o Gurdev Singh produced along with affidavit Ex.CB for claiming that Rs.11 lac was received by Op1 from the complainant while issuing invoice Ex.C1, but this Gurdeep Singh does not claim himself to be present at the time of payment of this price by the complainant to OP1. So, Gurdeep Singh has been produced along with affidavit Ex.CB for supporting afterthought version. It is well settled that documents cannot tell lie though the persons may and as such, in view of above discussion, contents of Ex.C1 is taken to be correct that Rs.10,40,000/- paid by the complainant to OP1 towards the price of tractor through bill Ex.C1=Ex.R1. If actually excess price would have been charged by Op1 from the complainant, then complainant would have protested about the excess charging at the time of issue of bill Ex.C1=Ex.R1, but that is not the position pleaded and as such, in view of the above discussion, it has to be held that invoice/bill Ex.C1 was issued for the price actually charged.

9.                OP1 has produced the bills Ex.R4 to Ex.R7, the reflection of which made in produced ledger entries or statement of account Ex.R8 for establishing that Rs.6808/- still payable by the complainant to OP1. The above referred bills were issued on 27.8.2014, 2.10.2014, 29.12.2014 and 27.6.2016. Date 27.6.2016 on Ex.R7 seems to be mistakenly recorded because June 2016 is yet to arrive. However, reference of this bill of Rs.2490/- (Ex.R7) made in Ex.R8 with reference of date 27.6.2014 and as such, this Ex.R7 virtually pertains to date 27.6.2014. The present complaint filed on 28.7.2015 i.e. after the date of above referred bills Ex.R4 to Ex.R7. So, the produced documentary evidence establishes as if the complaint may have been filed for evading payment of charges payable by the complainant to OP1 on the basis of bills Ex.R4 to Ex.R7. This circumstance shows that facts regarding excess charging of price amount may have been incorporated as an afterthought for giving strength to the story put forth in the complaint.

10.              Deficiency in service pleaded on the ground that paint of the tractor falling at its own and it is giving less average as well as the tractor is not in working condition. However, job cards Ex.R2 of date 25.2.2015 and Ex.R3 of date 20.4.2015 produced by OP1 to prove that after due repair/service of the tractor, the same was got by the complainant in satisfactory condition by appending his signatures underneath  these job cards. Allegations of falling of paint at its own or of the tractor not in working condition were not levelled while accepting the tractor in satisfactory condition through these job cards of 25.2.2015 and 20.4.2015. If really the paint of the tractor had been falling down at its own, then complainant would have complained about the same at the time of getting the tractor repaired/serviced on above referred dates of 25.2.2015 and 20.4.2015. No such complaints shown to be lodged and as such, allegations in this respect are allegations of making alone.

11.              Warranty policy produced on record as Ex.R9. Perusal of exclusionary clauses of this warranty reveals that warranty will become null and void, if tractor or any   part thereof is repaired or altered otherwise in accordance with the standard repair procedures or by any person other than their authorized dealers or their branch dealers or their service centers in any way. It is the case of the complainant himself that he got the A.C.cabin fitted on the tractor by spending Rs.2,50,000/-. Case of OPs is that this A.C.Cabin got fitted by the complainant from outside i.e. from an unauthorized person. Complainant has not produced any document to show as to where from A.C.Cabin on the tractor in question was got fitted by him. Even it is not claimed in the complaint or in the legal notice Ex.C2 as to where from A.C.Cabin was got fitted by the complainant. So, allegations in this respect remains vague. If really A.C.Cabin in question would have been got fitted by the complainant from authorized dealer or branch dealer or the authorized service center of OPs, then complainant definitely would have got the bill issued for the same and Ops would have issued the job card even, but that is not the position because such documents are not produced and as such, case of the OPs fully believable that actually A.C.Cabin got fitted from an unauthorized dealer or any unauthorized service station. Being so warranty/guarantee became null and void because A.C.Cabin was got fitted by the complainant from unauthorized dealer or unauthorized service station. Therefore, OPs are not           liable.

12.              Another claim of the complainant is that at the time of purchase of the tractor, he was disclosed as if the tractor will consume 7.5 liter diesel per hour, but in fact, consumption of tractor is about 11 liter per hour. In the job cards Ex.R2 and        Ex.R3, complaint of high fuel consumption was specifically lodged by the complainant. Even if such complaint was lodged by the complainant with service centre of OPs, despite that this high fuel consumption alleged to be there because of fitting of A.C.Cabin on the tractor. As and when an A.C. equipment is got fitted on vehicle, then fuel efficiency bound to be decreased and same has happened in this case. So, high fuel consumption was on account of getting of A.C.Cabin fitted. Date of fitting of A.C.Cabin deliberately not mentioned in the complaint or in the notice Ex.C2 or in the tendered affidavits. Even no documentary evidence produced to show as to  on which date, A.C.cabin was got fitted by the complainant on the tractor in question. So, complaint virtually has been filed by suppressing the material facts.

13.              As per law laid down in case titled as EM PEE Motors Pvt. Limited vs. Ramesh Kumar Bamel and others-I(2015)CPJ-32(N.C.), if the person bonafide believe upon the report submitted by a 3^rd party such as RAI and represented accordingly to the public that purchased car will give particular mileage, but later on said car does not give that mileage, then it can’t be treated as a case of false representation because vehicle which gives particular mileage under standard tests condition will never be able to deliver the same mileage, when it was driven on    roads. The same is the position in the case before us because here A.C.Cabin got fitted from an unauthorized person by the complainant against the terms and conditions of the warranty rendering the warranty as null and void. Besides, the average consumption bound to decrease due to conditions of road or improper driving or like that. So none of     the allegations levelled in the complaint proved and as such, deficiency in service on the part of OPs is not at all proved. Even adoption of unfair trade practice by Ops not proved at all and as such, complaint merits dismissal.

14.              Therefore, as a sequel of the above discussion, the present complaint is hereby dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

                                      (Babita)                            (G.K.Dhir)

                              Member                            President

Announced in Open Forum

Dated:12.05.2016

Gurpreet Sharma.